Border Patrol Retains Broader Search Powers

A U.S. Supreme Court ruling this week makes it easier for Border Patrol agents at the San Onofre immigration checkpoint to stop drivers suspected of smuggling drugs, but because of legal technicalities the ruling is probably not the last word on the issue, lawyers said.

Without comment, the high court declined Monday to review a federal appeals court decision issued in May that granted the Border Patrol broader powers to stop motorists.

But because the Supreme Court’s action apparently was based on a point of legal procedure, rather than on the substance of the case, the issue is likely to be back before the high court within a year or two, lawyers in San Diego said Tuesday.

“All it does, in my mind, is delay addressing the issue,” said Kate Thickstun Leff, the defense lawyer for Mark A. Taylor, a Carlsbad man arrested at the San Onofre checkpoint for possession of methamphetamine.

Using Taylor’s case as a test, federal prosecutors in San Diego have pressed for a “dual use” for the immigration checkpoint, saying it is uniquely suited for checking for drugs. In court records, prosecutors have claimed drug couriers increasingly rely on smuggling routes from Baja California through San Diego to Los Angeles.

Taylor was stopped April 28, 1990, at the San Onofre checkpoint. Agents found no illegal aliens hidden in the trunk of his car. But, agents said, Taylor seemed “nervous,” so they called a drug-sniffing dog, searched his car and found two pounds of methamphetamine under the back seat, according to court files.

Before the case ever got to a trial, Taylor challenged the search, saying it violated his right to be free from an unreasonable search and seizure. When agents found no migrants, the search should have ended, he said.

Last May, a three-judge panel of the U.S. 9th Circuit Court of Appeals rejected Taylor’s claim. It is that decision the Supreme Court let stand.

The 9th Circuit Court, which serves California and other Western states, said agents may stop a driver at the checkpoint for immigration reasons, then prolong the stop to ask about drugs so long as agents have “minimal suspicion” about drug smuggling.

Before last May, the long-standing rule had been that agents needed “reasonable suspicion” for a stop, a far more stringent test.

Under the law, Border Patrol agents must still have a strong suspicion--in legal jargon, called “probable cause”--to actually search a stopped car for drugs. In Taylor’s case, the drug-sniffing dog gave agents good cause to believe there were drugs aboard, according to court files.

Because Taylor’s case has not yet gone to trial, however, the government’s appeals lawyers in Washington argued to the Supreme Court that the issue of the Border Patrol’s authority at the checkpoint was not yet ready for a final decision.

When the Supreme Court declined to take the case, that technicality was probably the reason why, said Leff and the San Diego prosecutor on the case, Patrick K. O’Toole.

Leff said Tuesday that Taylor would probably agree in the next few weeks to a plea bargain under which he would plead guilty to a drug offense but preserve his right to argue on appeal that he should never have been searched in the first place. Then the appeals cycle will begin again, she said.

Civil libertarians expressed concern Tuesday that “minimal suspicion” could amount to nothing more than an agent’s hunch, meaning there could be a surge at the checkpoint of unwarranted intrusions on the privacy rights of innocent motorists. But O’Toole said those fears were unfounded.

Minimal suspicion “might not be a lot you can point to, but it has to be something,” he said. “Agents can’t just say, ‘I had a feeling in my stomach that there were drugs or aliens.’ It has to be something, that the guy looked nervous, that the car was tampered with--something.

“The defense always says, ‘That’s too vague,’ or, ‘Agents can always say that.’ But that’s why you then have hearings (in court) about whether agents did have something they could point to, or not.”